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FAMILIES FIRST CORONAVIRUS RESPONSE ACT

1. Emergency Family and Medical Leave Expansion Act;
2. Emergency Paid Sick Leave Act; and,
3. Tax Credits for Paid Sick and Paid Family Medical Leave

1.                  Emergency Family and Medical Leave Expansion Act (“EFMLEA”)

The EFMLEA amends the federal Family and Medical Leave Act (“FMLA”) from April 2, 2020, through December 31, 2020 by adding a “qualifying need related to a public health emergency” basis for job-protected leave.

The EFMLEA applies to private employers with fewer than 50 employees (which are thus not otherwise subject to the FMLA), as well as public sector employers, but not to employers with 500 or more employees (which are otherwise subject to the FMLA).

All employees of a covered employer are eligible for leave under the EFMLEA as long as they have been employed for at least 30 calendar days.

This leave applies if the employee is unable to work (or telework) because:

(1) the employee needs to care for his or her minor child whose school or place of care has been closed; or

(2)  the child care provider of the employee’s minor child is unavailable, due to a COVID-19 declared emergency.

All employers who meet the EFMLEA coverage requirements will be required to provide notice of this new category of leave to their employees.

How Much Pay is Required during FMLA Leave

·         The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including emergency paid sick leave. It is unclear whether an employer can require the employee to use accrued paid leave during the 10-day period. The law is silent on this latter issue, though it cites back to a provision of the FMLA that allows the employer to require the use of accrued paid leave.

·         The remaining 10 weeks are paid at 2/3 of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work (with a maximum payment of $200 per day and $10,000 total)

 Restoration to position 

·                  Section 104(a)(1) SHALL NOT APPLY with respect to an employee of an employer who employs fewer than 25 employees if the conditions described in paragraph (2) are met.

          (2) Conditions.— The conditions described in this paragraph are the following:

·         “(A) The employee takes leave under section 102(a)(1)(F).

·         “(B) The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer—

o    “(i) that affect employment; and

o    “(ii) are caused by a public health emergency during the period of leave.

·         “(C) The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.

·         “(D) If the reasonable efforts of the employer under subparagraph (C) fail, the employer makes reasonable efforts during the period described in paragraph (3) to contact the employee if an equivalent position described in subparagraph (C) becomes available.

Healthcare providers and emergency responders may be excluded from the EFMLEA.

2.     Emergency Paid Sick Leave Act (“EPSLA”)

The EPSLA, like the EFMLEA, will remain take effect on April 2, 2020, and remain in effect until December 31, 2020. The EPLSA applies to public employers and employers engaged in commerce or any industry affecting commerce that employ fewer than 500 employees (in the case of private employers) or employ one or more employees (in the case of public employers). The EPSLA mandates that employers immediately provide paid sick time to employees, regardless of length of employment, who cannot work (or telework) because the employee:

1. is subject to a COVID-19 quarantine or isolation order;
2. has been advised by a health care provider to self-quarantine due to COVID-19;
3. is experiencing COVID-19 symptoms and seeking a medical diagnosis;
4. is caring for an individual subject to (1) or (2) above;
5. is caring for the employee’s child because the child’s school or place of care has been closed, or the child’s care provider is unavailable, due to COVID-19 precautions; and/or
6. is experiencing any substantially similar condition specified by the Secretary of the Health and Human Services.

However, healthcare providers and emergency responders may be excluded from the EPSLA’s paid sick leave requirements.

The EPSLA requires employers provide eligible employees with paid sick time in the following duration and values:

• For full-time employees: 80 hours
• For part-time employees: Average hours worked over a two-week period
• For employees with varying schedules, employers should calculate an average number of hours worked per day over a 6-month period.
• For uses (1), (2), and (3) listed above, paid sick time shall be no less than the greater of:
  • (i) the employee’s regular rate of pay;
  • (ii) minimum wage rate under the FLSA; or
  • (iii) minimum wage rate in the state or locality where the employee is employed.
• For uses (4), (5), and (6) listed above, paid sick time shall be no less than 2/3 of the greater of:
  • (i) the employee’s regular rate of pay;
  • (ii) minimum wage rate under the FLSA; or
  • (iii) minimum wage rate in the state or locality where the employee is employed.
• Paid sick time, however, in no event shall exceed:
  • $511 per day and $5,110 in the aggregate for uses (1), (2), or (3) listed above; and
  • $200 per day and $2,000 in the aggregate for uses (4), (5), or (6) listed above.

The EPSLA allows employers to request that its employees follow reasonable notice procedures after day one of sick time to continue receiving such paid sick time. There is no carryover of emergency paid sick time to another year, and the law does not require such leave, if unused, to be paid out upon separation from employment.

The EPSLA prohibits employers from requiring that employees use other paid leave before using the paid sick time. Nor can employers condition the payment of paid sick time on the employee finding a replacement to cover his or her missed hours of work.

The EPSLA also contains an anti-retaliation provision. If an employer violates the EPSLA, it is considered to have failed to provide minimum wages and will be subject to penalties under the FLSA, which can include back pay, an equal amount of liquidated damages, plus attorneys’ fees. In addition, as under the FLSA, the expansive definition of employer under the EPSLA creates the potential of individual liability for certain business owners and managers.

Employers will be required to post (and keep posted) in the workplace notice about paid sick leave under the EPSLA.

                 3.        Tax Credits for Paid Sick and Paid Family Medical Leave

While the EPSLA and EFMLEA are in effect, employers are entitled to a credit (unless they elect otherwise by opting out) against the employer-portion of social security taxes imposed each quarter as follows:

• For EPSLA, the credit is equal to 100% of the wages required to be paid under the EPSLA (“qualified sick leave wages”) for that quarter, capped for each individual at $200 per day (or $511 per day for individuals in government related quarantine, self-quarantine advised by a health care provider, or with symptoms of COVID-19 and seeking diagnosis) for a total of 10 days for all quarters.
• For EFMLEA, the credit is equal to 100% of the wages required to be paid under the EFMLEA (“qualified family leave wages”) for that quarter, capped for each individual at $200 per day and $10,000 total for all quarters.
• The credits for any quarter cannot exceed the employer-portion of social security taxes owed by such employer for the quarter on the wages paid to all employees; however, any excess credits will be treated as an overpayment and refunded.
• The credits may be increased by the employer’s qualified health plan expenses allocable to, and by the employer-portion of Medicare taxes imposed on, qualified sick leave wages and qualified family leave wages.

There are also special rules for taxes on employers, where eligible employers do not have to pay the employer portion of social security taxes on qualified sick leave wages and qualified family leave wages.

Here at Westberry & Connors our Florida Board Certified Labor and Employment Lawyers are continuing to monitor all the changes to the various laws that effect employees. If you believe that you have been the victim of workplace discrimination or retaliation, please give us a call.